The Upper Tribunal has given judgment in a test case on ETS appeals and judicial reviews: R (on the application of Gazi) v Secretary of State for the Home Department (ETS – judicial review) IJR [2015] UKUT 327 (IAC). It is essential reading for anyone directly affected by the ongoing ETS saga and for their legal representatives.

In 2013 the BBC’s Panorama programme exposed large scale fraud in obtaining the English language certificates required by migrants applying to stay in the UK. Migrants sitting tests provided by one of the private companies sanctioned by the Home Office, Educational Testing Service Limited, usually now known as “ETS”, were filmed being read the correct answers by the invigilator and it was established that proxy test takers were used.

In response, the Home Office removed ETS from the list of approved test providers (after an inexplicable wait of four months) and began investigating which migrants had already sat tests with ETS. In many cases the Home Office revoked permission to stay in the UK.

What was not really known, though, is how the Home Office identified who had or had not cheated in the ETS tests; cheating was not universal and it only seems to have been some tests where the answers were read aloud. It isn’t hard to imagine this being marketed as a “premium” service by some test centres for which test candidates had to pay more than normal. Perhaps not dissimilar in principle to selling off Tier 1 visas to rich people who do not speak English and charging more for quicker routes to settlement, some might say.

In country or out of country appeals

Where leave was revoked, the Home Office often went about doing so using the mechanism of the pre-Immigration Act 2014 version of section 10 of the Immigration and Asylum Act 1999. This had the effect of meaning that any appeal against such a decision would normally have to be brought after removal from the UK, i.e. from abroad.

It is here that the Gazi has bad news for those affected: President McCloskey considers that an out of country appeal is an adequate remedy in such cases and there will be no justification for an application for judicial review instead. He finds at paragraphs 34 to 41 that the appellants were unable to establish that there was an “improper motive” or bad faith in the Home Office’s actions and therefore no reason for entertaining judicial review proceedings rather than a statutory appeal.

Some cases generate an in country right of appeal and others generate only an out of country appeal. This is determined by the procedural background to each case. Gazi establishes that where the appeal falls to be an out of country one, this will have to do and there is no justification for an in country appeal. There are other cases running in parallel, though, and it may be that the Court of Appeal reaches a different conclusion in due course.

Home Office evidence

In cases that have already been challenged before Gazi, the “evidence” on which the Home Office relies in these cases has trickled out. The evidence is astonishingly weak in legal terms, consisting of generic witness statements by witnesses that are never available for cross examination that do not refer to the individual person accused of fraud and which do not explain how the particular person was identified as being a cheat.

A little more detail emerges in Gazi, but even the new evidence merely sets out a third hand account of general methods said to have been used to check for fraud. This included “biometric voice recognition” commissioned by ETS:

The basic technology extracts biometric features from an individual’s speech to generate voice print (the voice equivalent of a finger print). This voice print can then be run against samples to establish whether the sample is likely a recording of the same person who had generated the voice print or a different person.

If a case is identified as being a match, it is subject to a further “human verification” by unknown ETS operatives with unknown training and unknown qualifications using unknown methods. The statement of a Mr Millington, an Assistant Director at the Home Office, says that he himself compared “tone, accent and the distinctive and instinctive expressions used to fill hesitations in speech” in some of the matched cases. But he also professes to no training or experience in voice analysis.

This is all accepted by the witnesses in their statements to be “imperfect” and to return false positives. No further details of the technology or methods are provided nor are the voice files themselves provided nor the individual analyses carried out on particular cases. This renders the evidence immune to meaningful analysis either generally or in individual cases. It also seems it was not ready for deployment by ETS in real life. Nevertheless, it was deployed following the BBC investigation and it is on this evidence that the Home Office relies.

A comparison with the SPRAKAB linguistic analysis saga is unavoidable. In those cases, involving linguistic analysis in asylum cases, the tribunal proved itself entirely open to accepting Home Office assurances at face value despite similar deficiencies. This was much later remedied by the Supreme Court.

This is where the good news comes in Gazi: President McCloskey is markedly unimpressed by the ETS and Home Office evidence. The verification process is described as “lean in detail” and the President goes on to say there is a “discernible element of bombast in these claims” by the Home Office witness and that there was “an unmistakable self-serving element” to his evidence.

In contrast to the Home Office evidence, the appellants in this case commissioned an expert report from a genuine expert in voice comparison, a Dr Harrison. He explains the process used in criminal proceedings, which involves a 10-15 hour analysis of and comparison between any two samples according to internationally accepted standards. Dr Harrison goes on comprehensively to criticise what was known of the methodology employed by ETS.

With these general findings and comments, any appellant challenging revocation of leave by way of appeal will be in a strong position to succeed on appeal, albeit after removal from the UK, after waiting several months for such appeal, in the face of continued tribunal resistance to video link evidence and after huge disruption to their studies such that they will probably need to start from scratch and obtain a new Certificate of Approval for a new course.

Foreign students, we welcome you, your tuition fees and your living costs to Britain, though, obviously.

UPDATE:

Good news and bad for challenges to ETS fraud decisions by @ColinYeo1 http://t.co/RbpjHKY4VK. The CA is hearing lead appeals on 8-9 July.

— Zane Malik QC (@ZaneMalikQC) June 18, 2015